The Supreme Court has again deflected an effort to clarify whether its landmark 2012 decision in Miller v. Alabama banning mandatory life without parole sentences for juveniles should be applied retroactively. It was the second time this term and at least the fourth time since June.
The Court’s Dec. 1 refusal to hear an appeal of an Illinois Supreme Court ruling allowing for retroactive application means that at least 80 of the 100 inmates serving juvenile life without parole in that state will now have an opportunity for resentencing.
While the fate of an estimated 2,000 individuals across the United States who are currently serving mandatory life-without-parole sentences for homicide offenses committed as minors still remains unclear, post-Miller decisions in state supreme courts and state legislatures suggest they may have reason to hope.
To put in perspective the latest deflection, each year the Court receives some 10,000 petitions to hear cases. The justices and their law clerks then narrow the list down to about 80 for review. In most cases, including this one, the Court offers no explanation for its decision either to grant or deny certiorari (review).
Of four recent petitions that the Court has declined to review on whether mandatory juvenile life without parole should be applied retroactively, two were appealing state court decisions that allowed for retroactivity; the other two were appealing ones that had denied it.
Miller v. Alabama was the third in a recent series of juvenile sentencing decisions from the Court that interpreted the Eighth Amendment’s ban on cruel and unusual punishment. Roper v. Simmons, decided by the Court in 2005, banned the use of the death penalty against juvenile offenders. Graham v. Florida, decided in 2010,banned life without parole sentences for juveniles convicted of non-homicide offenses.
With Miller, the Court effectively struck down laws in approximately 28 states, as well as federal statutes that required mandatory, non-parole-eligible life sentences to be imposed on individuals under 18 who were convicted of homicide.
According to the Campaign for the Fair Sentencing of Youth, Miller also led six states (Delaware, Hawaii, Massachusetts, Texas, West Virginia, and Wyoming) to abolish juvenile life without parole sentences in their entirety and five others (California, Florida, North Carolina, Pennsylvania, and Washington) to severely limit its use. On a national level, in October, the Criminal Justice Section of the American Bar Association passed a resolution, likely to become ABA policy in February, calling on states and the federal government to abolish juvenile life without parole.
The Miller Court, in its 5-4 ruling, called for individual review of each case and careful consideration of the classic hallmarks of adolescence, including immaturity, impetuosity and the failure to appreciate risks and to assess consequences. Miller also required sentencing judges to recognize the impact of the child’s family and home environment as well as the child’s role in the offense and potential for rehabilitation.
The Court said discretionary life sentences for minors should be rare. Justice Elena Kagan, writing for the majority, declared:
Given all that we have said in Roper, Graham, and this decision about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.
Since the Miller decision, state legislatures have been slow to respond. But in fact, that may not be a negative development.
According to the Sentencing Project, 15 of the 28 states affected have not passed compliance legislation. However, of the 13 that have passed new laws, 11 require young offenders to serve lengthy terms ranging from 15 to 40 years before parole review can even be considered.
In Missouri, the lack of legislative action has actually produced a more positive result through the state’s supreme court, which ruled in State v. Hart that prosecutors must persuade the jury beyond a reasonable doubt that a life without parole sentence is “just and appropriate under all the circumstances.” So far, the state has been unable to secure such a sentence.
The central, unanswered question by the Miller Court is whether the decision applies to those estimated 2,000 individuals sentenced before 2012 to mandatory life-without-parole sentences for homicides committed as minors. If it does, these offenders could receive new sentencing hearings, and, possibly, new sentences.
If not, the life sentence would stand, forever foreclosing the opportunity for a judge to consider the young offender’s individual characteristics and circumstances.
With repeated denials of certiorari in the past six months, the Supreme Court appears content to allow individual states to resolve the issue of retroactivity, despite a clear split among state supreme courts as well as federal circuit courts. Traditionally, such splits warranted the Court's review of so-called percolating issues; but since judicial review is discretionary (requiring at least four of the nine justices to agree to accept a case), it is difficult to predict if or when the Court will address the issue.
Meanwhile, there have been a growing number of state court decisions in which the majority ruled in favor of retroactivity. In October, the Court let stand the Nebraska Supreme Court’s decision in Nebraska v. Mantich to apply Miller retroactively. In addition to Nebraska and Illinois, seven other state supreme courts have applied Miller retroactively to juvenile offenders whose homicide conviction was final before June 25, 2012: Iowa, Massachusetts, Mississippi, New Hampshire, South Carolina, Texas and Wyoming.
In June, the Court let stand the Pennsylvania Supreme Court’s decision in Cunningham v. Pennsylvania not to apply Miller retroactively, and in October it let stand a similar decision from the Ohio Court of Appeals. Supreme courts in three other states — Louisiana, Michigan Minnesota — have also ruled that it does not apply retroactively, while those in Alabama, Colorado, Florida and North Carolina (among others) are still considering the retroactivity issue.
As for the federal courts, no appellate courts have squarely decided for or against Miller retroactivity, although there have been recent arguments in the 4th and 8th Circuits, and a case that’s being briefed in the 3rd, where decisions will all be forthcoming.
A number of circuits have addressed the strength of the retroactivity argument in assessing whether to allow habeas petitions from prisoners serving juvenile life without parole. At least six (1st, 2nd, 3rd, 4th, 5th and 8th) have allowed these petitions to go forward, while two have not (5th and 11th). None of these rulings, however, is either precedential or appealable.
Federal district courts have also begun to rule on the issue, with decisions on both sides. It is possible that the Supreme Court is waiting to see how other lower courts sort out the question of retroactivity before it addresses the issue itself.
Time may actually prove to be an ally. If state supreme courts continue to find Miller retroactive and order resentencing hearings, and as judges begin to conduct those hearings, the Supreme Court may be hard pressed to rule against such a trend.
The Court's latest decision will have an immediate impact on one particularly high-profile case in Illinois. In Illinois v. Davis, the state court had allowed Addolfo Davis to apply for a review of his original LWOP sentence. In 1990, Davis, then 14, was accused, along with two older teens, of fatally shooting two people and injuring two others from a rival gang in Chicago. There was conflicting testimony during the trial about whether Davis himself fired a weapon or had merely stood by the doorway while his co-defendants forced their way into the apartment where the shooting occurred.
Although neither testimony nor forensic evidence established that he injured or shot anyone, he was ultimately convicted and sentenced under an Illinois law requiring life without parole for first-degree murder.
Because of the mandatory nature of the state statute, the sentencing judge was prohibited from considering Addolfo's youth, family background, role in the offense or any other potentially mitigating factors.
At the time of the crime, nearly 25 years ago, Davis was 5 feet tall and 100 pounds. He was raised by his grandmother, who worked long hours to support her husband, who was disabled and bedridden, a son with an intellectual disability and a drug-addicted daughter, who was Addolfo's mother. They lived in a building’s cellar that lacked separate rooms or a kitchen; there was only a refrigerator and electricity from an extension cord connected to the landlord’s upstairs apartment. When he was 9, Davis committed his first crime — grabbing the purse of a woman at a gas station to pay for something to eat. Drawn to older men in the neighborhood who were gang members, he quickly learned how to steal cars and deal drugs.
Less than a year before the shootings, Davis could barely read or write and was displaying signs of mental illness. He was reported to bang his head against the wall, burn himself with cigarettes and jump from the roof of one building to another. Despite recommendations that he be placed in a psychiatric facility, the Illinois Department of Children and Family Services put him in a temporary shelter that experts had described as a “human warehouse.”
Soon after, he ran away, and the murders took place five days later.
Davis is now 38. He is incarcerated at Menard Correctional Center near the southern tip of Illinois. He writes poetry and has earned his high school equivalency degree. With the Supreme Court’s decision, he finally has the opportunity to demonstrate the basic premise behind Miller: that children are not merely miniature adults and that they have the unique capacity to change.
Tamar R. Birckhead is an associate professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law. This essay is jointly published by The Crime Report and the Juvenile Justice Information Exchange. Birckhead welcomes comments from readers.